Agenda - Planning Commission - 08/06/2009

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June 25, 20091 Volume 31 No. 12 Zoning Bulletin Arizona Revised Statutes ("A.R.S.") ~ 11-808 provided that a county could "establish the position of county zoning inspector, and such deputy inspectors as may be required, who shall be appointed by the [county board of supervisors]." New Sun maintained that ~ 11-808 required deputy zoning inspectors as well as county zon- ing inspectors be appointed by the county board of supervisors (the "Board"). Van Why had not been appointed by the Board. He had been hired by the county zoning inspector, Monty.5tansbury.' The county argued that ~ 11-808 required only that the county zoning inspector be appointed by the Board. The county filed a mo- tion asking the court to dismiss New Sun's complaint. The superior court granted the county's motion. New Sun appealed. DECISION: Affirmed. The Court of Appeals of Arizona, Division 1, Department E, agreed with New Sun's interpretation of ~ 11-808. It held that, based on the language and sentence structure of the statute, deputy inspec- tors also had to be. appointed by the Board. ) Although Van Why had not been appointed by the Board, the court also held that Van Why's allegations against New Sun were valid and enforceable because Van Why "was acting as a de facto deputy zon- ing inspector." The court explained that "the de facto doctrine" had "arisen to ensure the process of government continues even when an official must be removed for failure to meet certain statutory eligibil- ity requirements." Under the de facto doctrine, the acts of a person serving an office, with an official title-though the appointment is dis- puted-are valid as long as "they involve the interests of the public ...." Here, the court found that: (1) at the time Stansbury appointed Van Why, no one was aware that the appointment failed to comply with ~ 11-808; and (2) the interests of the public were served through enforcement (by Van Why) of the county's zoning regulations. Having found Van Why was acting as a de facto deputy county zoning inspec- tor when he issued the complaints against New ,Sun, the court held that the complaints were not void for failure of the Board to appoint Van Why as a deputed inspector under ~ 11-808. j See also: Jeffords v. Hi1te~ 2 Ariz. 162, 11 P. 351 (1886). See also: Rogers v. Frohmiller, 59 Ariz. 513,130 P.2d 271 (1942). 10 @ 2009 Thomson Reuters '" 160